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held to be good upon special demurrer. In a declaration on the case against a surgeon for improper treatment of the plaintiff, whereby he became worse, &c., it is sufficient to aver, that the defendant was a surgeon, and was retained and employed as such, (without shewing by whom,) " for reward to him," to treat and cure the plaintiff; and that the plaintiff entered upon the treatment, without shewing any undertaking by the defendant, or averring in words that it was his duty to act skilfully (h).
The late case of Dartnall v. Howard (i), also illustrates the law on this subject. The declaration was in assumpsit, and it was alleged, that in consideration that the plaintiff would retain and employ the defendants to lay out a sum of money in the purchase of an annuity, they undertook to do their duty; that plaintiff retained them, but defendants did not do their duty; but took insufficient security, whereby plaintiff lost the money. The court held, on a motion in arrest of judgment, that the declaration was bad, because it did not state that any reward was to be paid to the defendants, or that they were employed as attornies, or in any other particular character, so as to make them responsible for taking a bad security, although not guilty of negligence or dishonesty. The Court observed that the word retained did not necessarily mean that the defendants were attorneys, or were to be remunerated ; that the only duty imposed under the circumstances stated in the declaration, was a duty to act faithfully and honestly, not an absolute duty to take a sufficient security. There was not shewn to be a sufficient consideration for the promise and charge laid in the declaration.
ASSIGNMENT OF A Debt OR RIGHT.-The assignment of a debt, even of an uncertain or unascertained amount, due from a third person, is a sufficient consideration for a promise by the assignee, unless it amount to maintenance (k); although a chose in action is not assignable at law, so as to furnish the assignee with a right of suit, in his own name, against the debtor (). For in equity such assignment is good (m); and even a court of
(h) Pippin v. Sheppard, 11 Price, Holroyd, Js., in Price v. Seaman, 4 B. 400.
& C. 528; Peute v. Dicken, 1 C. M. (i) 6 D. & R. 438; 4 B. & C. 345, & R. 430; 5 Tyr. 116, S. C. An asS. C.
signment of a chose in action need not (k) Mousdale v. Birchull, in the Ex- be by deed, Howell v. NE Ivers, 4 T.R. chequer Ch., in Error, 2 Bla. R. 820; 690; Heuth v. Hull, 4 Taunt. 326. Com. Dig. Action upon the Case upon (1) Chit. B., 8th ed. 9. Assumpsit, (B) 83 ; per Bayley and (m) Id. 8.
law will, for some purposes and in some respects, recognize such transfer (n). The party promising, in consideration of the assignment to him, therefore derives a benefit from it. And a promise by A. to B. to relinquish to him the benefit to be derived from a written agreement between A. and a third person for the purchase of a freehold house, and an engagement by A. to permit B. to become the purchaser, instead of A., constitute a sufficient consideration for B.'s promise to pay A. a sum of money. This is proved by the case of Price v. Seaman (o). The agreement for the purchase in that case was by parol, and was therefore void ; and it was contended that the assignment was therefore inoperative, and the consideration failed. But the Court held, that, after verdict, it was to be presumed that the agreement for the purchase was in writing; as it was averred in the declaration that the plaintiff had “ bargained and agreed” for the purchase, and it was not shewn in the declaration that the contract for such purchase was verbal ; and that the assignment of the advantages to be derived from such a written contract was a sufficient consideration.
So the release of an equity of redemption is a good consideration for a promise. This was decided in Thorpe v. Thorpe (p). It was an action of assumpsit, and the declaration stated that the defendant held of the plaintiff certain lands by way of mortgage, and that it was agreed between them that the plaintiff should release his equity of redemption, in consideration of a sum of money to be paid by the defendant; and that although the plaintiff had performed the agreement on his part, the defendant had not paid the money. “ It was contended, 1st, That there was not here a sufficient consideration to maintain the assumpsit, because the mortgagee, after the condition broken, has an absolute estate in the land, and the common law does not take notice of the equity of redemption, which is a mere proceeding in chancery, and therefore the release of it, after the condition broken, in the eye of the common law, cannot mend the title of him who had an absolute title before; and, of consequence, the release of it is no consideration. 2ndly, Admit that the law will take notice of the equity of redemption that the mortgagor bath, and that it is a thing valuable, and consequently the release of it a valuable consideration; yet, in this case the plaintiff ought to have shewn how he was entitled to such equity of redemption; because, it may be that his equity of redemption was not valuable, and then the release of it will not be a valuable consideration, as if the mortgage was for the whole value of the land; or if this mortgage was made that the mortgagee should have the land until he was satisfied his money by perception of the profits : in this case, the mortgagor would have an equity of redemption, and yet it would not be valuable. But Holt, C. J. said, that the last case would not be a mortgage; and all the court held, that, without doubt, a release of an equity of redemption is a very good consideration, and the common law will take notice that the mortgagor has an equity to be relieved in chancery.”
(n) Chit. B. 8th ed. 8, 9.
(p) In Error, in K. B., from C. P., (0) In K. B., in Error, from C. P., 1 Lord Raym. 662; S. C., in Salk. 7 D. & R. 14; 4 B. & C. 525, S. C.; 171; Holt's R. 96, 29; and 12 Mod. S. C. in C. P., 10 Moore, 34; and 455. The pleadings are in Lutw. 245, 2 Bing. 437.
and 3 Lord Raym. 341.
THE PREVENTION OF LITIGATION, &c.- A consideration which has for its object the prevention of litigation, and the settlement of disputes between the parties, is also sufficient. This may be instanced by the ordinary case of a mutual submission of differences between parties, to arbitration: the mutual promises are a good consideration, although the submission may be revoked (9). But the submission must be mutually binding, or the consideration fails (r).
In Penn y. Lord Baltimore (s), a bill was filed in Chancery to enforce specific performance of articles of agreement under seal, entered into for the purpose of ascertaining and settling the boundaries of two provinces in America, and providing for mutual conveyances, &c. It was objected, amongst other things, that the agreement was merely voluntary, and that equity never decrees specifically without a consideration (t). Upon which the chancellor (Lord Hardwicke) observed, “ that it is true that the Court never decrees specifically without a consideration; but that the agreement in question was not without consideration : for though nothing valuable was given on the face of the articles as a consideration, the settling boundaries, and peace and quiet, formed a mutual consideration on each side ; and in all cases make a consideration to support a suit in Chancery, for performance of the agreement for settling the boundaries.
(9) Com. Dig. Action upon the Cuse (s) i Ves. sen. 414; and see Staupon Assumpsit (A) 1,(B) 2, 9; Arbi- pilton v. Stapilton, 1 Atk. 3; Il'inman trament (D); Watson on Arb. 23. v. Roper, 1 Chan. R. 81. (r) Ante, 14.
(1) See ante, 5, note (().
So the giving up a suit or proceedings, instituted to try a question respecting which the law is doubtful, is a good consideration for a promise to pay a stipulated sum; and therefore where a ship, having on board a pilot required by law, ran foul of another vessel, and proceedings were instituted by the owners of the latter to compel the owners of the former to make good the damage, and the former vessel was detained until bail was given, and pending such proceedings, the agents of the owners of the vessel detained, agreed, on the owners of the damaged vessel renouncing all claims on the other vessel, and on their proving the amount of the damage done, to indemnify them, and to pay a stipulated sum by way of damages; it was held, that there being contradictory decisions as to the point, whether ship-owners were liable for an injury done while their ship was under the controul of the pilot required by law, there was a sufficient consideration to sustain the promise made by the agents of the owners of the detained vessel, to pay the stipulated damages (u). And where certain stock of the plaintiffs was transferred under a forged power of attorney, and the Bank of England offered to replace the stock if the plaintiffs would first prove the amount under a commission of bankruptcy, issued against the firm in which the forger of the power had been a partner; and after this offer, the plaintiffs received a dividend, and engaged to tender a proof of their demand under the commission; it was held that they could not sue the Bank in respect of the stock, until they had fulfilled their engagement to tender the proof under the commission (x). And the Chief Justice, in delivering the judgment of the court, said, “ It was, at the time of the offer, a question of great nicety and difficulty, whether the Bank was by law liable to make good the loss; so that the engagement of the Bank to replace this stock without any litigation on their part, was of itself a very valuable and important concession, and a sufficient consideration to support a promise by the plaintiffs that they would tender, and endeavour to enforce, their proof against the bankrupt's estate.” And where an action is brought for an unliquidated demand, the payment by the defendant of a sum certain is a good consideration for a promise by plaintiff to stay all proceedings in the action and pay his own costs (y).
(u) Longridge v. Dorville, 5 B. & (1) Stracy v. The Bank of England, Ald. 117; observed upon in Walters 6 Bing. 754 v. Smith, 2 B. & Ad. 889; and see (y) Wilkinson v. Byers, 1 Ad. & E. Atlee v. Backhouse, 3 M. & W. 648. 106.
“ If A. lease land to B. at will (y), and A. assume to B. that in consideration that he will surrender the said estate at will to him, that he will provide a parsonage for J. S., this is not a good consideration for an action, because A. may determine the estate at will at his pleasure. But if it be alleged in such case that there was a controversy between A. and B., whether it was a letting at will, or for years, and upon that the promise was made, there is a good consideration. If A., in consideration that B. will make such an estate at will as his counsel shall devise, promise, &c., this is not a good consideration, because, immediately after the estate is created, he may determine it (z).” This doctrine was recognised and confirmed in a modern case (a), in which the Chief Justice said, “ It is not necessary that the party should have a right to hold : if it be doubtful whether he has a right to hold, that is a good consideration." And there can be no doubt that the resignation of a colourable claim, conflicting with that of another person, and the settlement of the dispute between the parties without suit, constitute a good consideration (6). And we have already remarked, that, in these cases, inequality of consideration does not of itself form any objection (c). But a promise by a defendant to pay the plaintiff a sum of money in consideration that he would cease to prosecute a petition against a member of parliament, is not sustainable, the consideration being to do an act contrary to public policy (d).
PROMISE FOR A PROMISE.—We have before mentioned some decisions that a mere promise to do an act at a future period, is a sufficient consideration for an engagement to the party making such promise (e). And there are other authorities that the mere promise, (without performance,) is, in such case, a sufficient consideration, as it subjects the party to a charge and obligation he would not otherwise have incurred (f). Thus the mere promise
(y) That is, strictly at will; not (d) Coppock v. Bower, 4 Mees. & from year to year.
W. 361. (2) 1 Rol. Abr., Action sur Case, (V), (e) See ante, 33. page 23, pl. 27, 28, 29; i Vin. À br.
(1) See Nichols v. Rugubred, Hob. 309.
88; Hebden v. Rutter, i Sid. 180; (a) Richardson v. Mellish, 2 Bing. Stangborrow v. Warner, 4 Leon. 3; 229; 9 Moor, 435, S. C.
Gouer v. Cupper, Cro. El. 543; Wich(6) Thornton v. Fairley, 2 Moor, als v. Johns, id. 703 ; per Parke, J., 397, 408, 409; see Cann v. Cann, in Il'entworth v. Bullen, 9 B. & c. cited 1 Atk. 10; 1 Vern. 4; 2 Ventr. 840, 849, 850; per Cur. Cartwright 353.
v. Cooke, 3 B. & Ad. 703. (c) Ante, 31.